Citation NR: 9611330
Decision Date: 04/24/96 Archive Date: 04/30/96
DOCKET NO. 92-01 215 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for the cause of the
veteranís death.
REPRESENTATION
Appellant represented by: Sandra K. Meadows, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael E. Kilcoyne, Counsel
INTRODUCTION
The veteran had active military service from February 1943 to
January 1947, from January 1948 to September 1953, and from
April 1954 to December 1957. He died in July 1988, and the
appellant is the veteranís widow.
The appellantís claim for service connection for the cause of
the veteranís death was originally denied in a rating action
dated in September 1988. The matter currently on appeal
arises from a December 1990 decision by the aforementioned
regional office (RO) that confirmed the prior decision to
deny service connection for the cause of the veteranís death.
The appellant disagreed with that decision in September 1991,
and perfected her appeal in February 1992. In June 1992, the
appellant offered testimony at a hearing conducted at the RO,
and subsequently the case was forwarded to the Board where it
was remanded in October 1992 and again in May 1994.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant essentially contends that the veteranís service
connected myasthenia gravis contributed substantially and
materially to cause the veteranís death, and that service
connection for the cause of his death is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted to reopen the appellantís claim for
service connection for the cause of the veteranís death.
FINDINGS OF FACT
1. By a rating action dated in September 1988, service
connection for the cause of the veteranís death was denied,
and a timely appealed from that decision was not filed.
2. Since the 1988 decision to deny service connection for
the cause of the veteranís death, the appellant has not
submitted any medical evidence showing that a service
connected disability caused or contributed substantially or
materially to cause the veteranís death.
CONCLUSIONS OF LAW
1. Evidence received since the September 1988 rating action
denying service connection for the cause of the veteranís
death is not new and material. 38 U.S.C.A. ß 5108 (West
1991); 38 C.F.R. ß 3.156 (1995).
2. The September 1988 decision denying service connection
for the cause of the veteranís death is final. 38 U.S.C.A.
ß 7105(c) (West 1991); 38 C.F.R. ß 20.302 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in line
of duty, or for aggravation of a preexisting injury suffered
or disease contracted in line of duty, in the active
military, naval, or air service. 38 U.S.C.A. ß ß 1110, 1131
(West 1991). Where a veteran served 90 days or more during a
period of war or during peacetime service after December 31,
l946, and a malignant tumor becomes manifest to a degree of
l0 percent within 1 year from date of termination of such
service, such disease shall be presumed to have been incurred
in service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. To establish
service connection for the cause of the veteranís death, the
evidence must show that disability incurred in or aggravated
by service either caused or contributed substantially or
materially to cause death. For a service connected
disability to be the cause of death, it must singly or with
some other condition be the immediate or underlying cause, or
be etiologically related. For a service connected disability
to constitute a contributory cause, it is not sufficient to
show that it casually shared in producing death, but rather,
it must be shown that there was a causal connection.
38 U.S.C.A. ß 1310 (West 1991); 38 C.F.R. ß 3.312 (1995).
The appellant was originally denied service connection for
the cause of the veteranís death by a rating action dated in
September 1988. The record reflects that at that time, the
veteran was service connected for myasthenia gravis rated 50
percent disabling, residuals of an appendectomy rated
noncompensably disabling, and infectious hepatitis rated
noncompensably disabling. The veteranís certificate of death
revealed that he died in July 1988, and that the immediate
cause of death was lung carcinoma. Listed as another
significant condition contributing to death, but not related
to lung carcinoma was ďCVAĒ. As this evidence did not show
that any of the veteranís service connected disabilities
caused or contributed to the cause of the veteranís death,
the RO denied the appellantís claim for service connection
for the cause of the veteranís death in a rating action dated
in September 1988. The appellant was notified of this
decision and of her appellate rights in a letter to her dated
later that month. She did not appeal the decision, and after
one year it became final. 38 U.S.C.A. ß 7105; 38 C.F.R.
ß 20.302.
In order to reopen a claim which has been finally denied, the
veteran must submit new and material evidence. 38 U.S.C.A.
ß 5108. New and material evidence means evidence not
previously submitted to agency decision makers which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
ß 3.156. If the Board determines that the appellant has
produced new and material evidence, the case is reopened and
the Board must evaluate the merits of the appellant's claim
in light of all the evidence, both new and old. Manio v.
Derwinski, 1 Vet.App. 140 (1991).
The evidence obtained and associated with the claims file in
connection with the appellantís attempt to reopen her claim
includes a letter from a private physician, Marc S. Gottlieb,
MD, who identified himself as the physician who cared for the
veteran during his terminal illness. In that letter, Dr.
Gottlieb stated in pertinent part as follows:
The patient was admitted with thrombosis and
embolization to his right hand and was found to
have poorly differentiated adenocarcinoma. He had
a rather rapid downhill course with progressive
weakness and deterioration.
I believe that this may in part have been worsened
by the patientís history of Myasthenia gravis as
the patientís course was quite progressive and his
weakness was quite profound. Much of his history
was quite complicated at the time and when I filled
out the death certificate, the fact that he
suffered from Myasthenia gravis was omitted from
Line 27, Part 2 on his certificate.
The additional evidence also included a transcript of a
hearing conducted at the RO in June 1992 at which the
appellant testified, private medical records dated between
1968 and 1988, VA medical records dated between 1979 and
1988, private medical records dated in May and July 1988
(which included those from the veteranís terminal
hospitalization), and the July 1988 autopsy report relating
to the veteran.
All of the foregoing evidence is new in that it had not been
associated with the claims file when the prior decision
denying service connection for the cause of the veteranís
death was denied. Nevertheless, none of it is material and,
therefore, the appellantís claim is not reopened.
Specifically, the Board observes that in the VA and private
medical records dated between 1968 and 1988, it is
acknowledged that the veteran had myasthenia gravis.
Moreover, they show that the veteran had been prescribed
medication for this disability, that he was hospitalized for
its treatment in 1982 after he had neglected to take his
medication for a month, and that he retired in 1986 at age 62
as an airport policeman, because it was felt that his
myasthenia gravis, in part, would prevent him from responding
adequately to emergency situations. Significantly, however,
these records do not show that after 1986 there were medical
complaints specifically attributed to myasthenia gravis or
any of the veteranís service connected disabilities.
Furthermore, it was noted in the private medical records that
the veteranís death was caused by cardiopulmonary arrest
secondary to carcinoma of the lung, rather than any
complication of myasthenia gravis. There was no indication
that myasthenia gravis or any of the veteranís service
connected disabilities were considered to have played any
role in the veteranís death. Under these circumstances,
these records do not raise a reasonable possibility that
there could be a change in the outcome of the appellantís
previously denied claim.
The private medical records dated in May and July 1988,
including the veteranís terminal hospitalization records and
autopsy, again show that the veteranís treating physicians
were aware of his past medical history that included his
service connected myasthenia gravis. They clearly show,
however, that the veteranís death was considered to have been
caused by carcinoma of the lung, superior vena cava syndrome,
upper extremity arterial thrombosis, and cerebral thrombosis.
Neither the hospital death summary or the autopsy report
reflect that any of the veteranís service connected
disabilities were considered to have caused or contributed to
the cause the veteranís death.
The only medical evidence suggesting any possible role in the
veteranís death played by a service connected disability is
the aforementioned letter from Dr. Gottlieb. In that letter,
he essentially states he believes that following the
veteranís hospitalization in July 1988, his rapid downhill
course ďmay in partĒ have been worsened by the veteranís
history of myasthenia gravis, and that myasthenia gravis was
omitted from Line 27, Part 2 on the veteranís death
certificate. (This section of the death certificate lists
conditions contributing to death not related to the cause
given in Part 1(a) which in this case was lung carcinoma.)
Dr. Gottliebís statement that the veteranís history of
myasthenia gravis may in part have contributed to the
veterans downhill course, obviously implies that it also may
not have so contributed. Moreover, to the extent it may have
contributed to the course the veteranís fatal illness took,
Dr. Gottlieb clearly stated that contribution would have only
been partial. He in no way indicated that myasthenia gravis
could have substantially or materially contributed to cause
the veteranís death. In view of the tentative nature of Dr.
Gottliebís statement, the Board concludes that it is merely
speculative, and as the Court held in Warren v. Brown, 6
Vet.App. 4 (1993), a speculative statement such as this does
not create a reasonable possibility that the outcome of the
previously denied claim would be changed. (Also see Tirpak
v. Derwinski, 2 Vet.App. 609 (1992).)
With respect to the failure of myasthenia gravis to appear on
the death certificate, Dr. Gottlieb merely stated that the
veteran had a complicated medical picture, and that
myasthenia gravis was omitted from the death certificate. He
did not indicate that it was his opinion that myasthenia
gravis should have been listed on the death certificate as a
contributing cause of the veteranís death, he just stated it
was not listed. This observation, already evident from an
examination of the death certificate document, provides
nothing material to the consideration of whether a service
connected disability substantially or materially contributed
to cause the veteranís death.
Regarding the appellantís testimony and contentions, they
merely relate her opinion that the veteranís service
connected myasthenia gravis contributed substantially to the
veteranís rapid deterioration and death. The appellant,
however, is not a physician, and therefore is not competent
to render an opinion regarding a question of medical
causation. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992).
Under the foregoing circumstances, the Board concludes that
none of the additional evidence raises a reasonable
possibility that when viewed alone or in the context of all
the evidence, there could be a change in the outcome of the
appellantís claim. Accordingly, the Board finds that new and
material evidence which would permit reopening of the claim
for service connection for the cause of the veteranís death
has not been presented, and the appellantís petition to
reopen her claim is denied.
In reaching this conclusion, the Board notes that this case
had been referred to a Board medical advisor who in February
1994 provided an opinion regarding whether myasthenia gravis
played a role in the cause of the veteranís death. The
Board, however, will not consider the February 1994 opinion
as to do so would cause prejudice to the appellant. The
United States Court of Veterans Appeal (Court) case Austin v.
Brown, 6 Vet.App. 547 (1994), dealt with the use of Board
medical advisor opinions. In that case, the Court stated
that the Board had violated the principles of fair process
and the express holding in Thurber v. Brown, 5 Vet.App. 119,
126 (1993). In Thurber, the Court held that before the Board
could rely on any evidence developed or obtained subsequent
to the issuance of the most recent statement of the case or
supplemental statement of the case, the Board must provide a
claimant with reasonable notice of such evidence and of the
reliance proposed to be placed on it, and provide a
reasonable opportunity for the claimant to respond. Thurber
at 126. As the Board did not rely on the Board medical
advisor opinion in this case, the holding in Thurber does not
apply here.
The Court in Thurber also stated that 38 C.F.R. ß 20.903
applies to VA opinions. That regulation provides that when
the Board requests an opinion pursuant to
ß 20.901, the Board will notify the appellant and the
appellantís representative, if any. When the opinion is
received by the Board, a copy of the opinion will be
furnished to the appellantís representative, or to the
appellant if there is no representative. A period of 60 days
from the date of mailing of a copy of the opinion will be
allowed for response. 38 C.F.R. ß 20.903. In the instant
case, the Board did not follow the procedure set forth in ß
20.903, and although the appellant and her representative
were advised in the December 1995 supplemental statement of
the case that a medical opinion had been obtained, they had
not been notified that a Board medical advisor opinion was
being requested. The February 1994 Board medical advisor
opinion supports a denial of the appellantís claim. As a
result, the Board would commit prejudicial error if the
opinion was considered; accordingly, that opinion was not
relied on in the adjudication of the appellantís claim.
ORDER
New and material evidence not having been submitted to reopen
a claim for service connection for service connection for the
cause of the veteranís death, the petition to reopen is
denied.
I. S. SHERMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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